United States v. Johnson

• Court: Court of Appeals for the Tenth Circuit
• Decided: June 2, 2017
• Docket: 16-6372
• Status: Unpublished

Opinion

FILED United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS June 2, 2017 TENTH CIRCUIT Elisabeth A. Shumaker Clerk of Court

UNITED STATES OF AMERICA,

Plaintiff - Appellee, No. 16-6372 v. (D.C. No. 5:94-CR-00064-C-1) (W.D. Okla.) TIMOTHY SHAUN JOHNSON,

Defendant - Appellant.

ORDER AND JUDGMENT *

Before TYMKOVICH, Chief Judge, McKAY, and McHUGH, Circuit Judges.

Timothy Johnson appeals the district court’s dismissal of his motion for a

sentence reduction pursuant to 18 U.S.C. § 3582(c)(2). Because we agree with

the district court that Mr. Johnson was ineligible for any reduction, we affirm.

In 1994, a jury convicted Mr. Johnson of numerous charges relating to a

conspiracy to distribute cocaine. The district court found his guidelines range to

be 360 months to life imprisonment and sentenced him to 410 months’

* After examining the briefs and appellate record, this panel has determined unanimously to honor the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. imprisonment. After the promulgation of Amendments 706 and 782 to the

Guidelines, Mr. Johnson filed motions to reduce his sentence under 18 U.S.C.

§ 3582. The district court dismissed his motions for lack of jurisdiction, finding

that applying the amendments would not yield a lower guidelines range.

We see no error in the district court’s analysis. Mr. Johnson does not

dispute that his amended guidelines range would remain 360 months to life after

applying the amendments. Nor does he contest the rule that a district court has no

authority to grant a § 3582 motion if the relevant amendments do “not have the

effect of lowering the defendant’s applicable guideline range.” USSG

§ 1B1.10(2)(a)(B); see, e.g., United States v. Sharkey, 543 F.3d 1236, 1239 (10th

Cir. 2009). Indeed, Mr. Johnson does not explain what relief he seeks from this

court. He never explicitly requests, for example, reversal of the district court’s

decision. But see Fed. R. App. P. 28(a)(9) (requiring appellant’s brief to contain

“a short conclusion stating the precise relief sought”). And the principal

argument he seems to advance, a constitutional attack against his sentence, is not

properly raised in a § 3582 motion. See United States v. Gay, 771 F.3d 681,

685–86 (10th Cir. 2014). In light of all this, we have no basis to overturn the

district court’s dismissals.

-2- AFFIRMED.

ENTERED FOR THE COURT

Timothy M. Tymkovich Chief Judge

-3-